The Family and Medical Leave Act (FMLA) is a federal law that allows certain employees of covered employers to take 12 weeks off from work when they have specific qualifying reasons, including their serious health conditions, the serious health conditions of an immediate family member, or to bond with a new child. This leave is job-protected, which means that your employer must return you to your job or to a position that is substantially similar in terms of pay, benefits, and job duties when your leave ends.
The FMLA only applies to private sector employers with at least 50 employees who work within 75 miles of each other. It also applies to local, state, and federal government agencies regardless of size, including K-12 schools. If you take leave under the FMLA, your employer must also continue your health insurance while you are away from work on leave. Here is some information about the benefits your employer must continue during your leave and whether taking FMLA leave might affect your pension from the attorneys at Swartz Swidler.
Continuation of Benefits During FMLA Leave
There are different rules for which benefits must be continued while you are away on leave as discussed below.
Health Benefits
If you have employer-provided health insurance, your employer must continue your coverage under its group plan while you are away on FMLA leave in the same way it would if you had not taken leave. Group health plans include plans that employers create or to which they contribute to provide health coverage to employees and their families. The types of health benefits that must be continued while you are away on leave include your employer-provided vision plan, dental plan, and medical insurance, including self-insured plans. These coverages must continue whether they are included in a single health plan or are administered separately.
Other Employer-Provided Benefits
For other types of employer-provided benefits, your employer must follow its policy for how it treats benefits for employees who are out on leave. If your employer’s policy doesn’t include a provision for benefits other than your health insurance to continue or accrue while you are away on leave, your employer isn’t required to continue them or allow them to accrue while you take FMLA leave.
However, your employer must restore your benefits when you return to your job once your FMLA leave ends. You also can’t be forced to requalify or undergo a second waiting period. If your employer doesn’t normally continue a benefit such as life insurance while employees are out on FMLA leave, it might still have to do so if your coverage gap would force you to requalify. However, if your employer continues benefits for you for this reason while you are away from work on FMLA leave, you can be asked to reimburse the employer’s share of your premiums it paid while you were on leave when you return to your job.
Retirement Benefits and Pensions
Your retirement benefits or pension must be restored by your employer when you return from FMLA leave. However, your employer doesn’t have to count your time on FMLA leave as hours worked for eligibility, benefits accrual, or vesting purposes. However, your retirement plan can’t treat your FMLA leave as a break in service. If your retirement plan requires you to be employed on a specific date to be credited for a year of service for contributions, participation, or vesting, you will be considered to be employed on that date even though you are away on leave.
Paying for Benefits During FMLA Leave
Any benefits that continue while you are away on FMLA leave must be paid. You will be required to continue paying your share of the premium, and your employer will likewise continue to pay its share. Unless you use up your paid time off during your FMLA leave, your employer won’t be able to withhold your portion from your paychecks. Your employer should explain how you can pay your portion. In many cases, employers simply ask employees who take FMLA leave to send a check for their share on each pay date during their leave.
Restoring Benefits
Your employer must restore your employee benefits when you return to work after taking leave under the FMLA. Your employer must restore your benefits at the same levels unless changes that affected the entire workforce occurred while you were away on leave. For example, if the premiums for your benefits increased across the board while you were on leave, you will have to pay the higher premiums when you return just like everyone else.
What Happens if You Don’t Return?
If you don’t return to your job after your FMLA leave ends, your company might be entitled to ask for a reimbursement of the employer-paid share of the benefits it continued during your FMLA leave. However, your employer can only ask you to reimburse it for the employer-paid portions if you choose not to return. It can’t ask for reimbursement if you were unable to return because of the continuation of your serious health condition or your family member’s condition.
Speak to Swartz Swidler
If you have questions about how your FMLA leave might affect your retirement benefits or pension, you should speak to Swartz Swidler. We offer free consultations and can help you understand your rights. Call us at (856) 685-7420 to learn more.
